Many people think the National Labor Relations Board only polices employers in the union sector.  They are wrong.  If you are a regular reader here, you know that the Obama Labor Board has mounted an increasingly aggressive agenda targeted at non-union workers in order to expand organized labor’s influence. 

For example, the Board’s agenda has included the notice posting requirement, discussed in this forum here.  The Board also has gone on the attack in scrutinizing social media activity, something we talked about here.  The Board has even taken the position that asking employees interviewed as part of an internal investigation not to discuss the matter with coworkers is unlawful – an issue we will be addressing on this blog in the very near future.

The latest example of the Board’s proactive non-union agenda involves at-will disclaimers, frequently found on employment applications and in employee handbooks, and often acknowledged in writing when an employee joins a non-union workforce.  The intent of these disclaimers has always been to inform employees that no employment policy or handbook constitutes a contract of employment, and that no job should be construed as permanent or lifetime in nature.  Typically, the at-will disclaimer states that there must be a written document signed by an officer of the company in order for an employment contract to exist.  These disclaimers are very useful in defending certain claims under state and common law.

Now the Board has decided that these disclaimers are unlawful if applied to restrict concerted activity.  In American Red Cross Arizona Blood Services Region, the Board took issue with a statement in the disclaimer that “the at-will relationship cannot be amended, modified or altered in any way.”  Obviously, if the employees voted a union in and a collective bargaining agreement is subsequently negotiated, the at-will relationship would be modified.  That is probably not the situation the disclaimer contemplated.  Nonetheless, the ALJ concluded that the disclaimer could be construed by employees to represent a promise or commitment not to make any effort to obtain union representation.

In Hyatt Hotels Corp., the Board again attacked the validity of the at-will disclaimer acknowledged by an employee when he received his copy of the employee handbook.  A complaint was issued alleging that the disclaimer chilled and interfered with the employee’s right to engage in concerted activity.  The case settled before it was tried, but the Board’s position echoed its approach in the Red Cross case.

So what are the takeaways for employers from American Red Cross and Hyatt?

  • Employers need to be aware that the Board will be scrutinizing disclaimers – and perhaps even other employer policies — carefully to determine whether they have the potential to restrict employees from engaging in concerted activity – e.g., talking about or advocating for a union. ;
  • While disclaimers are probably still too valuable to abandon because they serve a legitimate purpose having nothing to do with collective action, it may be worthwhile to draft or revise your at-will language in a way that makes clear employees’ Section 8 rights under the NLRA are not affected.  One way of doing that is to avoid attempts to secure from an employee an affirmation of his or her “at-will” status while at the same time specifically setting forth limitations on the employee’s ability to change that status; and
  • Merely telling employees that employment is at-will, and that all personnel policies and other employment-related documents do not create any sort of contract or contractual obligation is not unlawful.

In light of the Board’s continuing attempt to get involved in non-union settings, all employers would be well advised to review their employee communications – including but not limited to their disclaimers – and exercise caution when drafting or applying them in a way that could be interpreted as restricting an employee’s right to organize and bargain collectively.

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